Media have rushed to judge Portuguese police

Monday 10 September 2007 12.42 EDT
First published on Monday 10 September 2007 12.42 EDT

Foreign legal systems (including the Scottish) are not easily understood by the English. So it has been no surprise to me that the media coverage of Madeleine McCann's disappearance has been clouded by confusion, ignorance and speculation based on incorrect premises. From the beginning, questions arose as to the Portuguese police's procedures, and their failure to inform the media and the McCanns of progress of the investigation. Over the last few days, the uncertainty has been about the interrogation of the McCanns and the precise significance of a witness turning into a suspect. How quickly the word arguido (feminine, arguida) has become common currency.

I am not blaming the media for not fully understanding the legal principles which lie behind actions of the Portuguese authorities. But inevitably, one consequence has been to compare the Portuguese procedure with our own, unfavourably and often unfairly.

The McCanns, it is hinted and sometimes expressed explicitly, cannot possibly be treated fairly under this inadequate Portuguese system. There is a touch of arrogant xenophobia here, as if Portugal was some backward banana republic and, even more inaccurately, as if England and Wales's system of criminal justice, from police investigation to trial, was wonderful and totally free of miscarriages of justice. Yes, they do things differently, and I don't deny that they may, possibly, have made a mess of their inquiries and been unfair to the McCanns. But none of that is yet clear, and the media ought not to assume it.

Lord Justice Sedley's provocative entry into the DNA debate was interesting not just for its content. He appeared on the Today programme, made his plea for a DNA database which covered everyone living in or entering the country, answered a few questions, then disappeared. That is stranger than you might think. In a lecture at Leicester University in November 2004, Sir Stephen Sedley called for the identical reform, using the identical argument. The Guardian reported it, but no one else. His plea made no waves and was forgotten. I do not know why the issue suddenly re-emerged last week, but I cannot remember any judge before Sedley promoting his personal argument on an issue of national importance in such a high-profile way to such a large public listenership. I do hope, though, that he has not started a trend with judges rushing to the popular media. As recently as 20 years ago, judges were in effect forbidden from speaking to the media. It was only in 1987 that they were allowed to emerge from their shells. I once asked Lord Hailsham, the last lord chancellor to insist on judicial silence, for his reasons. "Because if I allowed them to open their mouths, they'd make bloody fools of themselves." Sedley hasn't, but others may.